FTC Final Order: Google, Motorola Mobility

7/27/2019 FTC Final Order: Google, Motorola Mobility

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1210120UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Edith Ramirez, Chairwoman Julie BrillMaureen K. OhlhausenJoshua D. Wright

)In the Matter of )

)MOTOROLA MOBILITY LLC, )

a limited liability company ))

and GOOGLE INC., ) Docket No. C-4410a corporation )

)))

DECISION AND ORDER

The Federal Trade Commission (Commission), having initiated an investigation of certain acts and practices of Google Inc. and/or Motorola Mobility, Inc. (now Motorola MobilityLLC, a wholly-owned subsidiary of Respondent Google Inc.) (hereinafter referred to asRespondents), and Respondents having been furnished thereafter with a copy of a draftComplaint that the Bureau of Competition proposed to present to the Commission for itsconsideration and which, if issued by the Commission, would charge Respondents withviolations of Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45; and

Respondents, their attorneys, and counsel for the Commission having thereafter executed an Agreement Containing Consent Order (Consent Agreement), containing admissions byRespondents of all the jurisdictional facts set forth in the aforesaid draft Complaint, a statementthat the signing of said Consent Agreement is for settlement purposes only and does notconstitute an admission by Respondents that the law has been violated as alleged in suchComplaint, or that the facts as alleged in such Complaint, other than jurisdictional facts, are true,and waivers and other provisions as required by the Commissions Rules; and


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The Commission having thereafter considered the matter and having determined that ithad reason to believe that Respondents have violated the said Act, and that a Complaint should issue stating its charges in that respect; and having accepted the executed Consent Agreementand placed such Consent Agreement on the public record for a period of thirty (30) days for thereceipt and consideration of public comments; and having duly considered the comments

received from interested persons pursuant to Commission Rule 2.34, 16 C.F.R. 2.34; and having modified the Decision and Order in certain respects, now in further conformity with the procedure described in Commission Rule 2.34, the Commission hereby makes the following jurisdictional findings and issues the following Decision and Order (Order).

1. Respondent Google Inc. is a corporation organized, existing, and doing businessunder and by virtue of the laws of Delaware, with its principal place of business at1600 Amphitheatre Parkway, Mountain View, CA 94043.

2. Respondent Motorola Mobility LLC (formerly Motorola Mobility, Inc.), is a limited liability company with its principal place of business at 600 North U.S. Highway 45,Libertyville, IL 60048, and is a wholly-owned subsidiary of Respondent Google Inc.

3. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of Respondents, and the proceeding is in the public interest.

ORDER

I.

IT IS ORDERED that, as used in this Order, the following definitions shall apply:

A. Respondents means Google Inc. and Motorola Mobility LLC, and the directors,

officers, employees, agents, representatives, successors, and assigns of each; and the jointventures, subsidiaries, divisions, groups and affiliates controlled by Google Inc. or Motorola Mobility LLC and the respective directors, officers, employees, agents,representatives, successors, and assigns of each. For purposes of this Order, an action byor on behalf of either Respondent Google Inc. or Respondent Motorola Mobility LLCshall satisfy an obligation imposed on Respondents.

B. AAA means the American Arbitration Association; a not-for-profit dispute resolutionorganization headquartered at 1633 Broadway, New York, NY 10019, www.adr.org . TheInternational Centre for Dispute Resolution (ICDR) is a division of the AAA.

C. Action means any proceeding whether legal, equitable, or administrative, in the United States or anywhere else in the world.

D. Binding Arbitration means arbitration to establish a License Agreement that followsthe procedures in Paragraph IV.B.2. of the Order and complies with the following:

1. The arbitration is administered by a Potential Licensees choice of Qualified Arbitration Organization, or such other arbitration organization or ad hoc group of arbitrators that Respondents and the Potential Licensee mutually agree upon;


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however, if the Potential Licensee does not select a Qualified ArbitrationOrganization within sixty (60) days after the Potential Licensee accepts the offer of Binding Arbitration, Respondent may demand arbitration through its choice of Qualified Arbitration Organization;

2. Respondents and the Potential Licensee agree on the number and manner of selectingthe arbitrators; however, if the parties cannot agree within thirty (30) days after selection of the Qualified Arbitration Organization, either party may demand that thenumber and manner be determined by the process stated in the rules of the selected Qualified Arbitration Organization, or if the applicable rules do not specify aselection method, that there be three arbitrators, with each party selecting onearbitrator and those arbitrators selecting the third;

3. Respondents and the Potential Licensee agree upon the language and location for thearbitration; however, if the parties cannot agree within thirty (30) days after selectionof the Qualified Arbitration Organization, either party may demand that these matters

be determined pursuant to the rules of the selected Qualified ArbitrationOrganization;

4. A party to the arbitration may condition its participation on the following:

a. The field of use for patents licensed through arbitration is limited to usescovered by the applicable FRAND Commitment(s), and

b. The arbitrator may require reasonable security, including an ongoing escrowof funds to be held by a Qualified Escrow Agent, if the arbitrator determinessuch security is necessary to ensure a party will fulfill the financial terms of anarbitrated License Agreement and the arbitrator sets forth in writing the terms

and conditions for the disbursement of such funds and the duties of the escrowagent; and

5. The arbitration is not conditioned on any terms or conditions not explicitly authorized by the Order; PROVIDED THAT, the arbitration may include any terms or conditions that are mutually agreed to by the parties.

E. Confirmation Letter means the letter attached as Exhibit A to this Order, in whichRespondents make a binding and irrevocable commitment, conditioned only on thePotential Licensee providing the same binding and irrevocable commitment, to (i) abide

by all licensing terms set by a Final Ruling on the Potential Licensees Qualified Requestfor a FRAND Determination, (ii) to pay any royalties established through a Final Rulingon the Qualified Request for a FRAND Determination as if the relevant patents had beenlicensed at such royalty rates as of the date Potential Licensee filed the Qualified Requestfor a FRAND Determination, and (iii) identify those terms in the proposed LicenseAgreement attached to the Confirmation Letter that (a) are being challenged through theQualified Request for a FRAND Determination and (b) each party agrees to include inany final License Agreement between the parties that also includes the terms or royalty

payments set by a Final Ruling in the Qualified Request for a FRAND Determination.


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F. Court means a judicial tribunal of appropriate jurisdiction in or outside of the United States.

G. Covered Injunctive Relief means a ruling of any legal or administrative tribunal,whether in or outside of the United States, that does or would prevent any Third Party (or for the purposes of IV.F., any party) from making, using, selling, offering for sale, or importing any item based on alleged Infringement of a FRAND Patent. Covered Injunctive Relief includes, but is not limited to, an exclusion order issued by the United States International Trade Commission under Section 337 of the Tariff Act as Amended,19 U.S.C. 1337, or an injunction order issued by a Court.

H. Essential as to a particular Standard means essential as defined by the rules or policies of the SSO that published such Standard. If essential is not defined by the SSOthat published a Standard (or is defined solely as needed or necessary), Essentialshall have the meaning given in Section 15 (Definitions) of the ETSI Rules of Procedure,30 November 2011 (attached as Exhibit C).

I. Final Ruling means a decision by a Court from which no further appeals or reconsideration may be made.

J. FRAND Commitment means a commitment to an SSO to license one or more PatentClaims Essential to a Standard on either royalty-free or fair, reasonable and non-discriminatory terms (or reasonable and non-discriminatory terms) pursuant to the

policies of such SSO. FRAND Commitments include, but are not limited to:

1. An undertaking to grant irrevocable licenses on fair, reasonable, and non-discriminatory terms and conditions to Essential IPR pursuant to the IntellectualProperty Rights Policy of the European Telecommunications Standards Institute

(ETSI);

2. An Accepted Letter of Assurance as defined in the IEEE-SA Standards Board Bylawsof the Institute of Electrical and Electronics Engineers, Inc. (IEEE) to the extent thesignatory of such assurance has selected option 1(a), 1(b) or 1(c) as they appear onthe IEEE form Letter of Assurance posted on the IEEE website as of the date thisOrder is issued (or amended options substantially equivalent thereto); and

3. A General Patent Statement and Licensing Declaration, or Patent Statement and Licensing Declaration, submitted to the Telecommunication Standardization Sector of the International Telecommunication Union (ITU) pursuant to the Guidelines for Implementation of the Common Patent Policy for ITU-T/ITU-R/ISO/IEC issued

jointly by the International Electrotechnical Commission, the InternationalOrganization for Standardization and the International Telecommunication Union, tothe extent that the declarant has selected option 1 or 2 as they appear on the formDeclarations published on the ITU website as of the date this Order is issued (or amended options substantially equivalent thereto).

K. FRAND Patent means a Patent Claim solely to the extent such Patent Claim is subjectto a FRAND Commitment. A Patent Claim shall be considered a FRAND Patent only


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with respect to the practice of such claim implementing the Standard for which therelevant FRAND Commitment was made, and not with respect to the practice of suchclaim in any other way outside the scope of the relevant FRAND Commitment.

L. FRAND Terms Letter means the letter attached as Exhibit B to this Order, in whichRespondents make a binding irrevocable commitment to license the Potential Licenseesrelevant FRAND Patents on terms that are fair, reasonable and non-discriminatory on thecondition that the Potential Licensee also make a binding commitment to licenseRespondents relevant FRAND Patents on terms that are fair, reasonable and non-discriminatory.

M. Infringement of (or Infringing) a FRAND Patent means a claim that a FRAND Patentis infringed based on the alleged infringers compliance with a Standard for which aFRAND Commitment including the FRAND Patent has been made.

N. JAMS means JAMS, a private alternative dispute resolution provider with headquartersat 1920 Main Street, Suite 300, Irvine, CA 92614, www.jamsadr.com .

O. License Agreement means a complete, binding, enforceable agreement between thesignatories to license the patents included in such agreement.

P. Offer to Arbitrate means a binding written offer, substantially in the form of Exhibit Dto this Order, delivered pursuant to the terms of Paragraph IV.B.2. of this Order to useBinding Arbitration to establish a License Agreement.

Q. Offer to License means a binding written offer delivered pursuant to Paragraph IV.B.1.of this Order that contains either a proposed License Agreement or a full description of all material commercial terms Respondents propose be included in a License Agreement,

including but not limited to, royalties, other financial terms, defensive suspension or termination provisions, and any limitations on the scope or field of use of any intellectual property to be included in a License Agreement.

R. Patent Claim means one or more claims in issued patents or pending patentapplications issued or pending in the United States or anywhere else in the world.

S. Potential Licensee means a Third Party allegedly Infringing a FRAND Patent.

T. Qualified Arbitration Organization means the following organizations and rules: (i) theAAA pursuant to its Commercial Arbitration Rules, or (ii) JAMS pursuant to itsComprehensive Arbitration Rules and Procedures; or, if the dispute involves a partydomiciled outside the United States, (iii) the AAAs ICDR pursuant to its InternationalArbitration Rules; (iv) JAMS pursuant to its International Arbitration Rules; or (v)WIPO pursuant to its WIPO Arbitration Rules.

U. Qualified Escrow Agent means a neutral Third Party selected by the party required to place funds in escrow who has prior experience as a neutral escrow agent and is notrejected by the arbitrator.


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V. Qualified Offers mean an Offer to License and an Offer to Arbitrate, both of whichcomply with the terms of Paragraphs IV.B. and IV.D. of this Order.

W. Qualified Recipient(s) means (i) outside legal counsel actively representing thePotential Licensee in connection with the licensing of or litigation concerningRespondents FRAND Patents; or (ii) chief executive officer and, if known toRespondent, general counsel, outside legal counsel or primary contact with Respondentwith respect to patent licensing.

X. Qualified Request for a FRAND Determination means a Request for a FRANDDetermination that (i) is the first such Request filed after the date this Order was issued

by a Potential Licensee against either Respondent that includes FRAND Patents Essentialto a particular Standard, (ii) is a Request for a FRAND Determination filed within sixty(60) days of the dismissal of a prior Request that included the same Standard, if thedismissal was on Respondents motion for lack of personal jurisdiction or improper venue, or (iii) is a Request for a FRAND Determination filed within sixty (60) days of thedismissal of a prior Request that included the same Standard, if the dismissal was without

prejudice and both Requests were filed in the same judicial district (and division, if applicable).

Y. Reciprocity as to an offer to license FRAND Patents for a particular Standard or Standards means reciprocity as defined in the FRAND Commitment or as defined bythe SSO to which a FRAND Commitment covering the Standard has been made; or if notdefined in the FRAND Commitment or by the relevant SSO, Reciprocity shall meanconditioning an offer to license FRAND Patents Essential to a Standard on receiving across-license to the licensees FRAND Patents Essential to the same Standard under terms and conditions consistent with the licensees FRAND Commitments covering such

patents; provided that, if the relevant FRAND Commitment of either Respondents or aPotential Licensee commits to providing a royalty-free license based on reciprocity, suchterm shall be interpreted as conditioning the offer of a royalty-free license on receiving aroyalty-free cross-license to FRAND Patents Essential to the same Standard.

Z. Request for a FRAND Determination means a request filed in any United StatesDistrict Court of competent jurisdiction that the court determine at least the royalty termsof a global license for use of Respondents FRAND Patents Essential to a Standard, to theextent the use of the relevant FRAND Patents is not covered by an existing license.

AA. Standard means a standard published by an SSO, including mandatory and optionalimplementations provided in such standard. Standards include, but are not limited to,

cellular wireless communication standards such as GSM, EDGE, UMTS and LTE(published by ETSI); the 802.11 WLAN standards (published by IEEE); and/or the H.264video compression standards, CDMA2000, or EV-DO standards (published by ITUTelecommunications Standardization Sector).

BB. SSO means a standard-setting organization, i.e. , an organization that produces and/or maintains standards or specifications under a defined process. SSOs include but are notlimited to, the European Telecommunications Standards Institute (ETSI), the Institute


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of Electrical and Electronics Engineers (IEEE), and the InternationalTelecommunication Union (ITU).

CC. Third Party means an individual, corporation, partnership, joint venture, association,unincorporated organization, or other business entity, other than Respondents, and includes in each case the direct and indirect wholly-owned subsidiaries and majority-owned and controlled subsidiaries and joint ventures of the first person or entity.

DD. WIPO means the World Intellectual Property Organization Arbitration and MediationCenter, an international not-for-profit alternative dispute resolution provider based at 34chemin des Colombettes, 1211 Geneva 20, Switzerland www.wipo.int/amc.

II.

IT IS FURTHER ORDERED that:

A. Respondents shall not revoke or rescind any FRAND Commitment unless:

1. all Standards for which such FRAND Commitment was made have been finallyrejected or withdrawn; or

2. Respondents no longer have any interest in FRAND Patents covered by such FRANDCommitment and revoking or rescinding the FRAND Commitment will not interferewith Respondents obligations under Paragraph V.B. below by inter alia altering theFRAND Commitment for any FRAND Patent sold or transferred by Respondent to aThird Party; or

3. all FRAND Patents covered by such FRAND Commitment have expired or beendetermined to be unenforceable by a Final Ruling of a Court;

PROVIDED THAT nothing in this Order shall (i) restrict Respondents exercise of anotherwise lawful right to suspend or terminate a license or covenant pursuant to its terms;(ii) require Respondents to give a FRAND Commitment with respect to any Standard or

proposed Standard; or (iii) restrict Respondents right to withdraw or modify a FRANDCommitment if such withdrawal or modification is expressly permitted by the SSO towhich the FRAND Commitment was made.

B. Respondents shall cease and desist from directly or indirectly making any future claimsfor Covered Injunctive Relief based on alleged Infringement of a FRAND Patent exceptas permitted under this Order.

C. Respondents shall not obtain or enforce Covered Injunctive Relief based on a claim of alleged Infringement of a FRAND Patent that is pending on the date this Order is issued,unless and until Respondents have made Qualified Offers to the Potential Licenseeagainst whom the Covered Injunctive Relief is sought. It shall be a violation of thisOrder if Covered Injunctive Relief based on a claim of alleged Infringement of a FRAND


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Patent is enforced before Respondents make the Qualified Offers and the time periodsspecified in Paragraph IV.B. of this Order have lapsed.

D. Respondents are prohibited from obtaining or enforcing Covered Injunctive Relief (i)during the pendency of a Request for a FRAND Determination that was filed before thedate this Order was accepted for public comment, (ii) during the pendency of a Qualified Request for a FRAND Determination that complies with Paragraph IV.C. of this Order,or (iii) after a Potential Licensee accepts Respondents Offer to Arbitrate.

E. Nothing in this Order shall prohibit Respondents from seeking Covered Injunctive Relief for alleged Infringement of a FRAND Patent against a Potential Licensee who:

1. is outside the jurisdiction of the United States District Courts; a Potential Licenseeshall be considered within the jurisdiction of the United States District Courts if thePotential Licensee itself or any parent or other entity with control over such PotentialLicensee is within the jurisdiction of the United States District Courts;

2. has stated in writing or in sworn testimony that it will not license the FRAND Patenton any terms; PROVIDED THAT for the purposes of this paragraph, challenging thevalidity, value, Infringement or Essentiality of an alleged infringing FRAND Patentdoes not constitute a statement that a Potential Licensee will not license such FRANDPatent;

3. refuses to enter a License Agreement covering the FRAND Patent on terms that have been set in the Final Ruling of a Court or through Binding Arbitration; or

4. does not provide the written confirmation requested in a FRAND Terms Letter withinthirty (30) days of when the FRAND Terms Letter was delivered to the Qualified

Recipient(s) of the Potential Licensee; PROVIDED, HOWEVER, that Respondentsshall not assert in any Court that such written confirmation constitutes a specificagreement to license on any particular terms.

III.

IT IS FURTHER ORDERED that Respondents and the Potential Licensee may agree toenter into the procedure outlined in this Paragraph III, or any other mutually agreed to procedurethat specifically references this Paragraph III, as the exclusive means for determining the termsof a License Agreement covering Respondents patents that are Essential to the Covered Standards, and if either party seeks Reciprocity, the Potential Licensees patents that areEssential to the Covered Standards to the extent not already licensed (hereinafter the RelevantLicense Agreement):

A. Respondents and Potential Licensee agree to negotiate, for a period of at least six (6)months, to determine the terms of a Relevant License Agreement;

B. At any time after six months, at the option of Respondents or within sixty (60) days of therequest of Potential Licensee, Respondents shall send the Potential Licensee a proposed Relevant License Agreement, which if executed will form a binding license agreement;


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C. Within sixty (60) days after Respondents deliver the Relevant License Agreement to thePotential Licensee, the Potential Licensee shall either:

1. execute the Relevant License Agreement, or

2. designate all terms of the proposed Relevant License Agreement that the PotentialLicensee contends are inconsistent with Respondents FRAND Commitments(Contested Terms), accept all other terms (Accepted Terms), for each Contested Term propose an alternative that the Potential Licensee contends is consistent withthe FRAND Commitments of Respondents and, if applicable, of the PotentialLicensee (Relevant FRAND Commitments), and elect to have the Contested Termsresolved through a Request for a FRAND Determination or Binding Arbitration, the

purpose of which shall be to determine whether the Contested Terms are consistentwith the Relevant FRAND Commitments and, to set the appropriate requirements for terms found inconsistent with the Relevant FRAND Commitments;

D. It is intended that the Request for a FRAND Determination or Binding Arbitration shallestablish the Contested Terms, and that these terms, together with the Accepted Terms,shall constitute a binding Relevant License Agreement, which if executed will form a

binding license agreement. Except to the extent inconsistent with the preceding sentence,nothing herein shall restrict the ability of any party from presenting evidence or makingarguments in Binding Arbitration or in the Request for a FRAND Determination,including without limitation arguments by Respondents that the District Court hearing theRequest for a FRAND Determination cannot or should not hear the action on

jurisdictional or justiciability grounds or because an alternative forum would be moreappropriate, or arguments regarding validity, Essentiality, Infringement or the value of the patents included in the Relevant License Agreement;

E. If the Potential Licensee elects to resolve the Contested Terms through a Qualified Request for a FRAND Determination, and the United States District Court in which suchRequest was filed determines on its own motion or on Respondents motion that it cannotissue a ruling on the Contested Terms, then the Respondents and the Potential Licenseeshall resolve the Contested Terms through Binding Arbitration, which may be filed byeither Respondents or Potential Licensee within sixty (60) days after the dismissal of theQualified Request for a FRAND Determination.

F. It shall be a violation of this Order for Respondents to file a claim seeking, or otherwiseobtain or enforce, Covered Injunctive Relief in a manner that violates the terms of anyagreement entered into with a Potential Licensee pursuant to this Paragraph III.

IV.

IT IS FURTHER ORDERED that in Respondents activities in or affecting commerceas commerce is defined in the Federal Trade Commission Act, in connection with the licensingof Respondents FRAND Patents, Respondents shall not file a claim seeking, or otherwise obtainor enforce, Covered Injunctive Relief based on the alleged Infringement of a FRAND Patent


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against any Potential Licensee who has not entered into an agreement pursuant to Paragraph IIIabove:

A. If filing a claim for, or otherwise obtaining or enforcing, the Covered Injunctive Relief violates the terms of any written agreement with the Potential Licensee.

B. Until after Respondents have taken the following actions:

1. At least six (6) months prior to pursuing Covered Injunctive Relief, Respondents shalldeliver to the Qualified Recipient(s) of the Potential Licensee a copy of this Order and an Offer to License (to the extent not already licensed) the FRAND Patent and Respondents other FRAND Patents Essential to the same Standard or Standards (theCovered Standards). Respondents may condition the Offer to License onReciprocity, but may not require the Potential Licensee to license any Patent Claimnot Essential to a Standard practiced by the Potential Licensee, or to license any other

patents or intellectual property (any offered terms and conditions that are for additional patents or intellectual property shall not be considered part of the Offer toLicense);

2. At least sixty (60) days prior to pursuing Covered Injunctive Relief, Respondentsshall deliver to the Qualified Recipient(s) of the Potential Licensee an Offer toArbitrate the terms of a License Agreement to the Respondents FRAND PatentsEssential to the Covered Standards, and, if seeking Reciprocity, to the PotentialLicensees FRAND Patents Essential to the Covered Standards. The Offer toArbitrate shall include a binding and irrevocable undertaking that Respondents shallenter a License Agreement on terms and conditions established by the arbitrator and

pay all applicable royalties established under the agreement as if they had been ineffect as of the date Respondents file for arbitration. Respondents may condition the

Offer to Arbitrate on the Potential Licensee making the same binding and irrevocableundertaking. Respondents shall offer Binding Arbitration under the following termsand conditions, or on such other terms and conditions as may be mutually agreed to

by the parties:

a) When the Potential Licensee accepts Respondents Offer to Arbitrate, thePotential Licensee shall state whether it demands Reciprocity;

b) Respondents shall file for arbitration and deliver to the Qualified Recipient(s)of the Potential Licensee a proposed License Agreement for the RespondentsFRAND Patents Essential to the Covered Standards, and, if either party is

seeking Reciprocity, to the Potential Licensees FRAND Patents essential tothe Covered Standards, in each case to the extent not already licensed;

c) Within sixty (60) days of receiving the proposed License Agreement pursuantto Paragraph IV.B(2)(b), the Potential Licensee shall designate all terms of theLicense Agreement that it contends are inconsistent with RespondentsFRAND Commitments, propose additional or alternative terms the PotentialLicensee believes are necessary for the License Agreement to comply with the


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FRAND Commitments of Respondents, and if applicable the PotentialLicensees FRAND Commitments, and agree to inclusion of all other terms inthe final License Agreement;

d) The arbitrator shall determine whether the terms contested by the PotentialLicensee are consistent with the FRAND Commitments of Respondents, and if applicable, the Potential Licensee. The arbitrator shall revise any terms thatit finds are not consistent with the relevant FRAND Commitments;

e) The arbitrator shall set the terms of the final License Agreement; and

f) Within thirty (30) days after the arbitrator sets the terms of a final LicenseAgreement, the parties shall enter into and execute a License Agreement;

PROVIDED THAT, if the procedures for Binding Arbitration as set forth in this Order conflict with the mandatory arbitration rules of an SSO to which both Respondent and aPotential Licensee are subject, then either Respondent or the Potential Licensee mayrequire that the relevant provisions of the License Agreement be determined pursuant tothe mandatory arbitration rules of such SSO.

C. If the Potential Licensee has filed a Qualified Request for a FRAND Determinationcovering Respondents FRAND Patents Essential to the Covered Standards no more thanseven (7) months after Respondents delivered the Offer to License or three (3) monthsafter Respondents delivered the Offer to Arbitrate, whichever is later, and such Actionhas not been dismissed upon a Final Ruling; PROVIDED THAT not less than thirty (30)days after the Potential Licensee files the Qualified Request for a FRAND Determination,Respondents may send a proposed License Agreement and a Confirmation Letter (attached as Exhibit A) to the Qualified Recipient(s) of the Potential Licensee. If the

Potential Licensee does not deliver written acceptance of the terms in the ConfirmationLetter to the recipient designated by Respondents in the Confirmation Letter within sixty(60) days of receipt of the Confirmation Letter, Respondents shall be relieved of their obligations not to file a claim for, or seek or enforce, Covered Injunctive Relief.

D. The Offer to License and an Offer to Arbitrate shall be irrevocable for the following periods:

1. An Offer to License shall be irrevocable until the date of delivery of an Offer toArbitrate.

2. An Offer to Arbitrate shall be irrevocable until thirty (30) days after Respondents filean Action for Covered Injunctive Relief based on alleged infringement of one or moreFRAND Patents included in the Offer to Arbitrate, PROVIDED HOWEVER, thatwith respect to Actions containing requests for Covered Injunctive Relief that are

pending on the date this Order is issued, the Offer to Arbitrate shall be irrevocableuntil two (2) months after Respondents deliver an Offer to Arbitrate or, if there is a

pending Request for a FRAND Determination covering the same FRAND Patent thatis the basis of the request for Covered Injunctive Relief, until there is a Final Rulingon the Request for a FRAND Determination.


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E. Notwithstanding any other provision of this Order, nothing herein shall:

1. prevent or restrict the Potential Licensee and Respondents from negotiating,arbitrating or entering into any License Agreement involving FRAND Patents on anyterms or in any manner that is mutually agreed to by the Potential Licensee and Respondents;

2. prevent or restrict Respondents from enforcing any License Agreement entered into prior to the effective date of this Order;

3. as to a Potential Licensee, apply to Respondents FRAND Patents to the extentalready licensed to such Potential Licensee;

4. prevent or restrict Respondents from pursuing relief, claims or defenses other thanCovered Injunctive Relief, including damages for infringement and potentialenhancements for willful infringement;

5. restrict any party from arguing in any Request for a FRAND Determination that theDistrict Court cannot or should not hear this action on jurisdictional or justiciabilitygrounds or that an alternative forum would be more appropriate; or

6. restrict any party from making arguments in any Request for a FRANDDetermination or in Binding Arbitration regarding the validity, Essentiality,Infringement or value of the patents at issue in such proceeding.

F. Notwithstanding any other provision of the Order, Respondents shall be permitted to filea claim seeking, or otherwise obtain and enforce, Covered Injunctive Relief against aPotential Licensee, if the Potential Licensee is seeking or has sought on or after the date

of this Order, Covered Injunctive Relief against a product (including software), device or service that is made, marketed, distributed or sold by Respondents based on Infringementof the Potential Licensees FRAND Patent unless prior to seeking the Covered InjunctiveRelief, the Potential Licensee does one of the following:

1. makes Qualified Offers to the party whose infringement forms the basis for the claimof Covered Injunctive Relief (the alleged infringer) and the alleged infringer hasrefused both offers; OR

2. obtains a Final Ruling on a Request for a FRAND Determination to which the alleged infringer was a party that sets at least the royalty terms for a license to the Standard for which the allegedly infringed FRAND Patents are Essential.

G. The fact that the final terms determined through Binding Arbitration or a Request for aFRAND Determination may differ from the terms Respondents proposed in an Offer toArbitrate or an Offer to License shall not, by itself, constitute a violation of this Order.


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V.


A. Respondents shall, within sixty (60) days of receiving a written request by a PotentialLicensee for a license to Respondents FRAND Patents Essential to one or moreStandards (Requested License), provide a written response and begin negotiation withsuch Potential Licensee for the Requested License. Respondents written response

pursuant to this paragraph shall be in good faith compliance with their FRANDCommitments and all other provisions of this Order.

B. Respondents shall not sell or assign any FRAND Patent to any Third Party unless suchThird Party agrees: (i) to become a successor to Respondents FRAND Commitments tothe extent the FRAND Patent is subject to such FRAND Commitments, (ii) not to seek Covered Injunctive Relief on the basis of Infringement of the FRAND Patent except tothe extent Respondents would be permitted to seek such Covered Injunctive Relief by theterms of this Order, and (iii) to condition further assignment of the FRAND Patent on theassignee agreeing to the terms of this subparagraph V.B.

VI.


A. Within thirty (30) days after this Order has been issued, Respondents shall submit to theCommission a verified written report setting forth in detail the manner and form in whichit intends to comply, is complying, and has complied with this Order. Respondents shallinclude in its report, a full description of the efforts being made to comply with the

relevant Paragraphs of this Order, including the status of each Action that contained arequest for Covered Injunctive Relief as of the date Respondents signed the AgreementContaining Consent Order, a description of all pending requests for Covered InjunctiveRelief and how such claims comply with the requirements of this Order, and a descriptionof each sale or assignment of a FRAND Patent and an assurance that such sale or assignment complies with Paragraph V.B. of this Order.

B. Beginning twelve (12) months after the date this Order has been issued, and annuallythereafter on the anniversary of the date this Order becomes final, for the next nine (9)years, Respondents shall submit to the Commission a verified written report setting forthin detail the manner and form in which it intends to comply, is complying, and hascomplied with this Order. Respondents shall include in its report, among other thingsthat are required from time to time, a description of all pending claims for Covered Injunctive Relief based on Infringement of a FRAND Patent and a statement of how suchclaims comply with the requirements of this Order, and a description of each sale or assignment of a FRAND Patents and an assurance that such sale or assignment complieswith Paragraph V.B. of this Order.


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VII.

IT IS FURTHER ORDERED that Respondents shall notify the Commission at leastthirty (30) days prior to any proposed:

A. Dissolution of either Respondent;

B. Acquisition, merger or consolidation of Respondents; or

C. any other change in the Respondents including, but not limited to the assignment and thecreation or dissolution of other subsidiaries, if such change might affect complianceobligations arising out of this Order.

VIII.

IT IS FURTHER ORDERED that, for purposes of determining or securing compliancewith this Order, and subject to any legally recognized privilege, and upon written request and

upon five (5) days notice to Respondents, Respondents shall, without restraint or interference, permit any duly authorized representative(s) of the Commission:

A. Access, during business office hours of Respondents and in the presence of counsel, to allfacilities and access to inspect and copy all books, ledgers, accounts, correspondence,memoranda and all other records and documents in the possession or under the control of Respondents relating to compliance with this Order, which copying services shall be

provided by Respondents at its expense; and

B. To interview officers, directors, or employees of Respondents, who may have counsel present, regarding such matters.

IX.

IT IS FURTHER ORDERED that this Order shall terminate on July 23, 2023.

By the Commission, Commissioner Ohlhausen dissenting and Commissioner Wrightrecused.

Donald S. Clark Secretary

SEAL

ISSUED: July 23, 2013


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15

In re Motorola Mobility LLC and Google Inc.

Exhibit A

Confirmation Letter


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16

Exhibit A

[DATE ]

[COUNSEL REPRESENTING POTENTIAL LICENSEE IN QUALIFIED REQUEST FOR AFRAND DETERMINATION]

[POTENTIAL LICENSEE]

Dear [COUNSEL],

I am sending this letter on behalf of Google Inc. and its wholly-owned subsidiary MotorolaMobility LLC. This letter is required by the Federal Trade Commissions Decision and Order in

In the Matter of Motorola Mobility LLC and Google Inc. , Docket No. C-4410 (the Order), towhich Google Inc. and Motorola Mobility agreed as a settlement with the FTC. Your courtaction [ACTION] is a Qualified Request for a FRAND Determination under the terms of theOrder. As required by the Order, attached is a copy of the Order. All capitalized terms in thisletter refer to terms defined in the Order. Please read the Order carefully. If anything in thisletter conflicts with the terms in the Order, the terms in the Order apply.

I am also sending a proposed License Agreement that Google is ready and willing to execute.The proposed License Agreement grants a global license to all Googles FRAND Patents that areEssential to the Standard(s) included in [ACTION], specifically [IDENTIFY STANDARDS] tothe extent not already licensed. [If Google is seeking reciprocity, add Google is seekingReciprocity as permitted in Googles relevant FRAND Commitments. Therefore, the proposed License Agreement also includes a license to all [POTENTIAL LICENSEES] FRAND Patentsthat are Essential to the same Standard(s).]

Under the Order, Google generally cannot seek an injunction or exclusion order against[POTENTIAL LICENSEE] while the above action is ongoing. However, Google can demand that, as a condition of not seeking an injunction or exclusion order , Google and the PotentialLicensee make the following binding commitments that cannot be revoked:

1. Google and the Potential Licensee will abide by all licensing and royalty terms set bya Final Ruling in [ACTION];

2. Google and the Potential License will pay royalties set by a Final Ruling in[ACTION] as though the license for which the royalties are set was in place from thedate the action was filed; and

3. Within sixty (60) days of receiving or sending this letter, as applicable, Google and the Potential Licensee will identify in writing to the other party all terms in theattached proposed License Agreement that the sending party is willing to include in a


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17

final License Agreement that also includes the terms and royalties set by a FinalRuling in [ACTION].

Nothing in this letter restricts the ability of any party to present any evidence or make anylegal arguments in [ACTION], or any other forum, including without limitation, arguments

regarding validity, Essentiality, infringement or the value of any patents included in theproposed License Agreement or at issue in [ACTION], or any arguments that the courtcannot or should not hear [ACTION] on jurisdictional or justiciability grounds or becausean alternative forum would be more appropriate.

Please Note: IF YOU DO NOT SIGN THIS LETTER AND DELIVER IT TO [NAME,ADDRESS AND PHONE NUMBER OF GOOGLES DESIGNATED RECIPIENT] WITHIN60 DAYS FROM RECEIPT, I.E. BY ___________, GOOGLE MAY BE ABLE TO SEEKAN INJUNCTION OR EXCLUSION ORDER AGAINST YOU WITHOUT VIOLATINGTHE ORDER.

Sincerely,

[QUALIFIED REPRESENTATIVE]

GOOGLE INC.

COUNTER-SIGNATURE

___________________________

[NAME]

[CHIEF EXECUTIVE OFFICER, GENERAL COUNSEL OR OUTSIDE COUNSEL]


WHEN SIGNED BY BOTH GOOGLE AND [POTENTIAL LICENSEE] THIS LETTERSHALL CONSTITUTE A BINDING AND IRREVOCABLE COMMITMENT BY BOTH PARTIES TO ABIDE BY THE TERMS OF THIS LETTER


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Exhibit B

FRAND Term Letter


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Exhibit B

[DATE]

[QUALIFIED RECIPIENT(S) OF POTENTIAL LICENSEE]

[POTENTIAL LICENSEE ]

Dear [COUNSEL],

I am sending this letter on behalf of Google Inc. and its wholly-owned subsidiary MotorolaMobility LLC (Google). The Federal Trade Commission and Google reached a settlement thatresulted in the Federal Trade Commission issuing an Order in In the Matter of Motorola Mobility

LLC and Google Inc., Docket No. C-4410 (the Order). Attached is a copy of the Order. Allcapitalized terms in this letter refer to terms defined in the Order. Please read the Ordercarefully. If anything in this letter conflicts with the terms in the Order, the terms in theOrder apply.

Under the Order, Google generally cannot seek an injunction or exclusion order against you for using Googles patented technology to comply with a Standard published by a standard-settingorganization such as ETSI, IEEE or ITU if Google has made a FRAND Commitment coveringthat technology and you are willing and able to pay Google fair and reasonable royalties.However, Google can demand that, as a condition of not seeking an injunction or exclusionorder , Google and you agree to the following binding commitments that cannot be revoked:

Google and the [POTENTIAL LICENSEE] agree to license each others patentsthat are Essential to complying with [STANDARD OR STANDARDS] that eachuses on terms that are fair and reasonable and that comply with each partysFRAND Commitments.

Nothing in this letter restricts the ability of you or Google to present any evidence or makeany legal arguments in any forum, including without limitation, arguments regardingvalidity, Essentiality, infringement or the value of any patents, or any arguments that anyforum court cannot or should not hear a particular matter on jurisdictional or justiciabilitygrounds or because an alternative forum would be more appropriate.

Please Note: IF YOU DO NOT SIGN THIS LETTER AND DELIVER IT TO [NAME,ADDRESS AND PHONE NUMBER OF GOOGLES DESIGNATED RECIPIENT] WITHIN30 DAYS FROM RECEIPT, I.E. BY ___________, GOOGLE MAY BE ABLE TO SEEK


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AN INJUNCTION OR EXCLUSION ORDER AGAINST YOU WITHOUT VIOLATINGTHE FTCs ORDER.

Sincerely,

[QUALIFIED REPRESENTATIVE]

GOOGLE INC.

COUNTER-SIGNATURE

___________________________

[NAME]

[CHIEF EXECUTIVE OFFICER, GENERAL COUNSEL OR OUTSIDE COUNSEL]


WHEN SIGNED BY BOTH GOOGLE AND [POTENTIAL LICENSEE] THIS LETTERSHALL CONSTITUTE A BINDING AND IRREVOCABLE COMMITMENT BY BOTH

PARTIES TO ABIDE BY THE TERMS OF THIS LETTER


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Exhibit C

Section 15 (Definitions)

ETSI Rules of Procedure, 30 November 2011


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Page 34ETSI Rules of Procedure, 30 November 2011

Annex 6: ETSI Intellectual Property Rights Policy

1 Introduction

The General Assembly of ETSI has established the following Intellectual Property Rights POLICY.

2 Definitions

Terms in the POLICY which are written in capital letters shall have the meaning set forth in Clause 15entitled DEFINITIONS.

3 Policy Objectives

3.1 It is ETSI's objective to create STANDARDS and TECHNICAL SPECIFICATIONS that arebased on solutions which best meet the technical objectives of the Europeantelecommunications sector, as defined by the General Assembly. In order to further thisobjective the ETSI IPR POLICY seeks to reduce the risk to ETSI, MEMBERS, and othersapplying ETSI STANDARDS and TECHNICAL SPECIFICATIONS, that investment in thepreparation, adoption and application of STANDARDS could be wasted as a result of anESSENTIAL IPR for a STANDARD or TECHNICAL SPECIFICATION being unavailable. In

achieving this objective, the ETSI IPR POLICY seeks a balance between the needs of standardization for public use in the field of telecommunications and the rights of the owners of IPRs.

3.2 IPR holders whether members of ETSI and their AFFILIATES or third parties, should beadequately and fairly rewarded for the use of their IPRs in the implementation of STANDARDSand TECHNICAL SPECIFICATIONS.

3.3 ETSI shall take reasonable measures to ensure, as far as possible, that its activities whichrelate to the preparation, adoption and application of STANDARDS and TECHNICALSPECIFICATIONS, enable STANDARDS and TECHNICAL SPECIFICATIONS to be availableto potential users in accordance with the general principles of standardization.

4 Disclosure of IPRs

4.1 Subject to Clause 4.2 below, each MEMBER shall use its reasonable endeavours, in particular during the development of a STANDARD or TECHNICAL SPECIFICATION where itparticipates, to inform ETSI of ESSENTIAL IPRs in a timely fashion. In particular, a MEMBERsubmitting a technical proposal for a STANDARD or TECHNICAL SPECIFICATION shall, on abona fide basis, draw the attention of ETSI to any of that MEMBER's IPR which might beESSENTIAL if that proposal is adopted.

4.2 The obligations pursuant to Clause 4.1 above do however not imply any obligation onMEMBERS to conduct IPR searches.

4.3 The obligations pursuant to Clause 4.1 above are deemed to be fulfilled in respect of all existingand future members of a PATENT FAMILY if ETSI has been informed of a member of this

PATENT FAMILY in a timely fashion. Information on other members of this PATENT FAMILY, if any, may be voluntarily provided.

5 Procedures for Committees

ETSI shall establish guidelines for the chairmen of COMMITTEES with respect to ESSENTIAL IPRs.

6 Availability of Licences

6.1 When an ESSENTIAL IPR relating to a particular STANDARD or TECHNICAL SPECIFICATIONis brought to the attention of ETSI, the Director-General of ETSI shall immediately request the


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owner to give within three months an irrevocable undertaking in writing that it is prepared togrant irrevocable licences on fair, reasonable and non-discriminatory terms and conditionsunder such IPR to at least the following extent:

MANUFACTURE, including the right to make or have made customized components andsub-systems to the licensee's own design for use in MANUFACTURE;

sell, lease, or otherwise dispose of EQUIPMENT so MANUFACTURED;

repair, use, or operate EQUIPMENT; and

use METHODS.

The above undertaking may be made subject to the condition that those who seek licencesagree to reciprocate.

In the event a MEMBER assigns or transfers ownership of an ESSENTIAL IPR that it disclosedto ETSI, the MEMBER shall exercise reasonable efforts to notify the assignee or transferee of any undertaking it has made to ETSI pursuant to Clause 6 with regard to that ESSENTIAL IPR.

6.2 An undertaking pursuant to Clause 6.1 with regard to a specified member of a PATENTFAMILY shall apply to all existing and future ESSENTIAL IPRs of that PATENT FAMILY unlessthere is an explicit written exclusion of specified IPRs at the time the undertaking is made. Theextent of any such exclusion shall be limited to those explicitly specified IPRs.

6.3 As long as the requested undertaking of the IPR owner is not granted, the COMMITTEEChairmen should, if appropriate, in consultation with the ETSI Secretariat use their judgment asto whether or not the COMMITTEE should suspend work on the relevant parts of theSTANDARD or TECHNICAL SPECIFICATION until the matter has been resolved and/or submitfor approval any relevant STANDARD or TECHNICAL SPECIFICATION.

6.4 At the request of the European Commission and/or EFTA, initially for a specific STANDARD or TECHNICAL SPECIFICATION or a class of STANDARDS/TECHNICAL SPECIFICATIONS,ETSI shall arrange to have carried out in a competent and timely manner an investigation

including an IPR search, with the objective of ascertaining whether IPRs exist or are likely toexist which may be or may become ESSENTIAL to a proposed STANDARD or TECHNICALSPECIFICATIONS and the possible terms and conditions of licences for such IPRs. This shallbe subject to the European Commission and/or EFTA meeting all reasonable expenses of suchan investigation, in accordance with detailed arrangements to be worked out with the EuropeanCommission and/or EFTA prior to the investigation being undertaken.

6bis Use of the IPR Licensing Declaration Forms

MEMBERS shall use one of the ETSI IPR Licensing Declaration forms at the Appendix to this ETSIIPR Policy to make their IPR licensing declarations.

7 Information on IPR by ETSI

7.1 Any published STANDARD or TECHNICAL SPECIFICATION shall include informationpertaining to ESSENTIAL IPRs which are brought to the attention of ETSI prior to suchpublication.

7.2 ETSI shall establish appropriate procedures to allow access to information at any time withrespect to ESSENTIAL IPRs which have been brought to the attention of ETSI.

8 Non-availability of Licences

8.1 Non-availability of licences prior to the publication of a STANDARD or a TECHNICALSPECIFICATION


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8.1.1 Existence of a viable alternative technology

Where prior to the publication of a STANDARD or a TECHNICAL SPECIFICATION an IPRowner informs ETSI that it is not prepared to license an IPR in respect of a STANDARD or TECHNICAL SPECIFICATION in accordance with Clause 6.1 above, the General Assemblyshall review the requirement for that STANDARD or TECHNICAL SPECIFICATION and

satisfy itself that a viable alternative technology is available for the STANDARD or TECHNICAL SPECIFICATION which:

is not blocked by that IPR; and

satisfies ETSI's requirements.

8.1.2 Non-existence of a viable alternative technology

Where, in the opinion of the General Assembly, no such viable alternative technology exists,work on the STANDARD or TECHNICAL SPECIFICATION shall cease, and theDirector-General of ETSI shall observe the following procedure:

a) If the IPR owner is a MEMBER,

i) the Director-General of ETSI shall request that MEMBER to reconsider itsposition.

ii) If that MEMBER however decides not to withdraw its refusal to license theIPR, it shall then inform the Director-General of ETSI of its decision andprovide a written explanation of its reasons for refusing to license that IPR,within three months of its receipt of the Director-General's request.

iii) The Director-General of ETSI shall then send the MEMBER's explanationtogether with relevant extracts from the minutes of the General Assembly tothe ETSI Counsellors for their consideration.

b) If the IPR owner is a third party,

i) the Director-General of ETSI shall, wherever appropriate, request fullsupporting details from any MEMBER who has complained that licences arenot available in accordance with Clause 6.1 above and/or requestappropriate MEMBERS to use their good offices to find a solution to theproblem.

ii) Where this does not lead to a solution the Director-General of ETSI shallwrite to the IPR owner concerned for an explanation and request ultimatelythat licences be granted according to Clause 6.1 above.

iii) Where the IPR owner refuses the Director-General's request and decidesnot to withdraw its refusal to license the IPR or does not answer the letter within three months after the receipt of the Director-General's request, theDirector-General shall then send the IPR owner's explanation, if any,together with relevant extracts from the minutes of the General Assembly tothe ETSI Counsellors for their consideration.

8.1.3 Prior to any decision by the General Assembly, the COMMITTEE should in consultation withthe ETSI Secretariat use their judgment as to whether or not the COMMITTEE should pursuedevelopment of the concerned parts of the STANDARD or a TECHNICAL SPECIFICATIONbased on the non-available technology and should look for alternative solutions.


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8.2 Non-availability of licences after the publication of a STANDARD or a TECHNICALSPECIFICATION

Where, in respect of a published STANDARD or TECHNICAL SPECIFICATION, ETSI becomesaware that licences are not available from an IPR owner in accordance with Clause 6.1 above,that STANDARD or TECHNICAL SPECIFICATION shall be referred to the Director-General of ETSI for further consideration in accordance with the following procedure:

i) The Director-General shall request full supporting details from any MEMBER or thirdparty who has complained that licences are not available in accordance with Clause 6.1above.

ii) The Director-General shall write to the IPR owner concerned for an explanation andrequest that licences be granted according to Clause 6.1 above. Where the concernedIPR owner is a MEMBER, it shall inform the Director-General of ETSI of its decision andprovide a written explanation of its reasons in case of continuing refusal to license thatIPR.

iii) Where the IPR owner refuses the Director-General's request or does not answer theletter within three months, the Director-General shall inform the General Assembly and, if available, provide the General Assembly with the IPR owner's explanation for consideration. A vote shall be taken in the General Assembly on an individual weightedbasis to immediately refer the STANDARD or TECHNICAL SPECIFICATION to therelevant COMMITTEE to modify it so that the IPR is no longer ESSENTIAL.

iv) Where the vote in the General Assembly does not succeed, then the General Assemblyshall, where appropriate, consult the ETSI Counsellors with a view to finding a solution tothe problem. In parallel, the General Assembly may request appropriate MEMBERS touse their good offices to find a solution to the problem.

v) Where (iv) does not lead to a solution, then the General Assembly shall request theEuropean Commission to see what further action may be appropriate, including non-recognition of the STANDARD or TECHNICAL SPECIFICATION in question.

In carrying out the foregoing procedure due account shall be taken of the interest of theenterprises that have invested in the implementation of the STANDARD or TECHNICALSPECIFICATION in question.

9 ETSI ownership of IPRs

9.1 The ownership of the copyright in STANDARDS and TECHNICAL SPECIFICATIONSdocumentation and reports created by ETSI or any of its COMMITTEES shall vest in ETSI butdue acknowledgement shall be given to copyrights owned by third parties that are identifiable inETSI copyrighted works.

9.2 In general, in the absence of any exceptional circumstances, where SOFTWARE is included inany element of a STANDARD or TECHNICAL SPECIFICATION there shall be no requirementto use that SOFTWARE for any purpose in order for an implementation to conform to theSTANDARD or TECHNICAL SPECIFICATION.

9.2.1 Without prejudice to Clause 9.1, any MEMBER contributing SOFTWARE for inclusion in aSTANDARD or TECHNICAL SPECIFICATION hereby grants, without monetarycompensation or any restriction other than as set out in this Clause 9.2.1, an irrevocable,non-exclusive, worldwide, royalty-free, sub-licensable copyright licence to prepare derivativeworks of (including translations, adaptations, alterations) the contributed SOFTWARE andreproduce, display, distribute and execute the contributed SOFTWARE and derivative worksfor the following limited purposes:


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a) to ETSI and MEMBERS to evaluate the SOFTWARE and any derivative worksthereof for determining whether to support the inclusion of the SOFTWARE in thatSTANDARD or TECHNICAL SPECIFICATION;

b) to ETSI to publish the SOFTWARE in that STANDARD or TECHNICALSPECIFICATION; and

c) to any implementer of that STANDARD or TECHNICAL SPECIFICATION toevaluate the SOFTWARE and any derivative works thereof for inclusion in its

implementation of that STANDARD or TECHNICAL SPECIFICATION, and todetermine whether its implementation conforms with that STANDARD or TECHNICAL SPECIFICATION.

9.2.2 (i) The copyright licence granted in Clause 9.2.1 shall also extend to any implementer of thatSTANDARD or TECHNICAL SPECIFICATION for the purpose of using the SOFTWARE inany compliant implementation unless (ii) the contributing MEMBER gives an irrevocableundertaking in writing at the time of contribution that it is prepared to grant an irrevocablecopyright licence on fair, reasonable and non-discriminatory terms and conditions for thepurpose of using the SOFTWARE in any compliant implementation.

9.2.3 Any MEMBER contributing SOFTWARE for inclusion in a STANDARD or TECHNICALSPECIFICATION represents and warrants that to the best of its knowledge, it has thenecessary copyright rights to license that contribution under Clause 9.2.1 and 9.2.2 to ETSI,MEMBERS and implementers of the STANDARD or TECHNICAL SPECIFICATION.

Other than as expressly provided in this Clause 9.2.3: (1) SOFTWARE contributed for inclusion in a STANDARD or TECHNICAL SPECIFICATION is provided AS IS with nowarranties, express or implied, including but not limited to, the warranties of merchantability,fitness for a particular purpose and non infringement of intellectual property rights and (2)neither the MEMBER contributing SOFTWARE nor ETSI shall be held liable in any event for any damages whatsoever (including, without limitation, damages for loss of profits, businessinterruption, loss of information, or any other pecuniary loss) arising out of or related to theuse of or inability to use the SOFTWARE.

9.2.4 With respect to the copyright licenses set out in Clause 9.2.1 and 9.2.2 , no patent licence isgranted by implication, estoppel or otherwise.

9.3 In respect of IPRs other than copyright in STANDARDS and TECHNICAL SPECIFICATIONSdocumentation and reports, ETSI shall only seek ownership of IPRs generated either by itsemployees or by secondees to ETSI from organizations who are not MEMBERS.

9.4 ETSI shall, on request by a non-member, grant licences to that non-member on fair andreasonable terms and conditions in respect of any IPRs, other than those referred to in Clause9.1 above, owned by ETSI. MEMBERS shall be allowed to use IPRs owned by ETSI free of charge.

10 Confidentiality

The proceedings of a COMMITTEE shall be regarded as non-confidential except as expresslyprovided below and all information submitted to a COMMITTEE shall be treated as if non-confidentialand shall be available for public inspection unless:

the information is in written or other tangible form; and

the information is identified in writing, when submitted, as confidential; and

the information is first submitted to, and accepted by, the chairman of the COMMITTEEas confidential.


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CONFIDENTIAL INFORMATION incorporated in a STANDARD or TECHNICAL SPECIFICATIONshall be regarded as non-confidential by ETSI and its MEMBERS, from the date on which theSTANDARD or TECHNICAL SPECIFICATION is published.

11 Reproduction of Standards Documentation

MEMBERS may make copies of STANDARDS and TECHNICAL SPECIFICATIONS documentation

produced by ETSI for their own use free of charge but may not distribute such copies to others.

12 Law and Regulation

The POLICY shall be governed by the laws of France. However, no MEMBER shall be obliged by thePOLICY to commit a breach of the laws or regulations of its country or to act against supranationallaws or regulations applicable to its country insofar as derogation by agreement between parties is notpermitted by such laws.

Any right granted to, and any obligation imposed on, a MEMBER which derives from French law andwhich are not already contained in the national or supranational law applicable to that MEMBER is tobe understood as being of solely a contractual nature.

13 Policy Decisions

Without prejudice to ETSI's Statutes and Rules of Procedure, no decisions shall be taken by ETSI inrelation to implementation of the POLICY unless supported by a 71 % majority of the weightedindividual votes cast by MEMBERS.

14 Violation of Policy

Any violation of the POLICY by a MEMBER shall be deemed to be a breach, by that MEMBER, of itsobligations to ETSI. The ETSI General Assembly shall have the authority to decide the action to betaken, if any, against the MEMBER in breach, in accordance with the ETSI Statutes.

15 Definitions

1 "AFFILIATE " of a first legal entity means any other legal entity:

directly or indirectly owning or controlling the first legal entity, or

under the same direct or indirect ownership or control as the first legal entity, or

directly or indirectly owned or controlled by the first legal entity,

for so long as such ownership or control lasts.

Ownership or control shall exist through the direct or indirect:

ownership of more than 50 % of the nominal value of the issued equity share capital or of more than 50 % of the shares entitling the holders to vote for the election of directors or persons performing similar functions, or

right by any other means to elect or appoint directors, or persons who collectively canexercise such control. A state, a division of a state or other public entity operating under public law, or any legal entity, linked to the first legal entity solely through a state or anydivision of a state or other public entity operating under public law, shall be deemed to falloutside the definition of an AFFILIATE.

2 "COMMITTEE " shall mean any Technical Body of ETSI and shall include ETSI Projects,Technical Committees, ETSI Partnership Projects, and their Working Groups.


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3 "CONFIDENTIAL INFORMATION " shall mean all information deemed to be confidentialpursuant to Clause 10 of the POLICY disclosed directly or indirectly to the MEMBER.

4 "EQUIPMENT " shall mean any system, or device fully conforming to a STANDARD.

5 "METHODS " shall mean any method or operation fully conforming to a STANDARD.

6 "ESSENTIAL " as applied to IPR means that it is not possible on technical (but not commercial)grounds, taking into account normal technical practice and the state of the art generallyavailable at the time of standardization, to make, sell, lease, otherwise dispose of, repair, use or operate EQUIPMENT or METHODS which comply with a STANDARD without infringing thatIPR. For the avoidance of doubt in exceptional cases where a STANDARD can only beimplemented by technical solutions, all of which are infringements of IPRs, all such IPRs shallbe considered ESSENTIAL.

7 "IPR " shall mean any intellectual property right conferred by statute law including applicationstherefor other than trademarks. For the avoidance of doubt rights relating to get-up, confidentialinformation, trade secrets or the like are excluded from the definition of IPR.

8 "MANUFACTURE ", shall mean production of EQUIPMENT.

9 "MEMBER " shall mean a member or associate member of ETSI. References to a MEMBERshall wherever the context permits be interpreted as references to that MEMBER and its

AFFILIATES.

10 " POLICY " shall mean ETSI's Intellectual Property Rights Policy.

11 " STANDARD " shall mean any standard adopted by ETSI including options therein or amendedversions and shall include European Standards (ENs), ETSI Standards (ESs), CommonTechnical Regulations (CTRs) which are taken from ENs and including drafts of any of theforegoing, and documents made under the previous nomenclature, including ETSs, I-ETSs,parts of NETs and TBRs, the technical specifications of which are available to all MEMBERS,but not including any standards, or parts thereof, not made by ETSI.

The date on which a STANDARD is considered to be adopted by ETSI for the purposes of thisPOLICY shall be the date on which the technical content of that STANDARD was available toall MEMBERS.

12 " TECHNICAL SPECIFICATION " shall mean any Technical Specification (TS) adopted by ETSIincluding options therein or amended version including drafts, the Technical Specifications of which are available to all MEMBERS, but not including any technical specifications, or partsthereof, not made by ETSI.

The date on which a TECHNICAL SPECIFICATION is considered to be adopted by ETSI for thepurposes of this POLICY shall be the date on which the technical content of that TECHNICALSPECIFICATION was available to all MEMBERS.

13 PATENT FAMILY shall mean all the documents having at least one priority in common,including the priority document(s) themselves. For the avoidance of doubt, documents refersto patents, utility models, and applications therefor.

14 For the purpose of this IPR Policy, SOFTWARE shall mean:

a set of instructions written in any programming language that either directly, or whenfurther compiled, performs a function when executed by hardware that processes dataaccording to instructions, such as an audio or video CODEC; but also

data and stream structure definitions, such as ASN.1, TTCN, or XML datarepresentations; and


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schema examples, such as SDL diagrams and data flow charts;

which can be transformed, either directly, or when further compiled, into usable/implementablecode.


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22


Exhibit D

Form Offer to Arbitrate


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Exhibit [D] - Form of Offer to Arbitrate

[DATE]

[QUALIFIED RECIPIENT(S)]


Dear [QUALIFIED RECIPIENT(S)]:

I am sending this letter on behalf of Google Inc. and its wholly owned subsidiary Motorola

Mobility LLC (Google). The Federal Trade Commission and Google reached a settlement thatresulted in the FTC issuing an Order In the Matter of Motorola Mobility LLC and Google Inc. , Docket No. C-4410 (the Order). A copy of the Order is attached. All capitalized terms inthis letter that are not specifically defined herein refer to terms defined in the Order andhave the definitions given therein. Please read the Order carefully. If anything in thisletter conflicts with the terms in the Order, the terms in the Order apply.

Google hereby offers to enter into Binding Arbitration with [POTENTIAL LICENSEE] (theCompany) pursuant to the terms of the Order, before your choice of Qualified ArbitrationOrganization (or such other arbitrators or arbitration organizations as shall be separately agreed to in writing by Google and the Company). If you accept this offer within the next sixty (60)days, under the Order Google cannot seek an injunction or exclusion order against youbased on infringement of the patents included in the Binding Arbitration. (You may still beable to accept this offer after that because it will remain open for a further period of time as setforth below.)

[IF SEEKING RECIPROCITY: The purpose of the Binding Arbitration would be to establisha License Agreement between Google and the Company cross-licensing our respective Patentsthat are Essential to the following Standards:]

[IF NOT SEEKING RECIPROCITY : The purpose of the Binding Arbitration would be toestablish a License Agreement between Google and the Company granting the Company alicense under Googles Patents (or, at the Companys option, a License Agreement cross-

licensing our respective Patents) that are Essential to the following Standards:]

[LIST STANDARDS HERE]

(the Covered Standards).

Notwithstanding their Essentiality to the Covered Standards, the License Agreement shallexclude any Patents that were licensed by Google to the Company, or by the Company to


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Google, under a separate license agreement that was effective as of the date of this Offer, in eachcase to the extent already licensed under such prior agreement.

[IF SEEKING RECIPROCITY : Google is interested in obtaining a cross-license to all of theCompanys Patents that are Essential to the Covered Standards, but Googles participation in theBinding Arbitration is conditioned only on Reciprocity for each of the Covered Standards, asthat term is defined in the Order. If the Company does not want to include Essential Patents thatare not included within the scope of Reciprocity as defined in the Order within the arbitrated License Agreement, it need not do so and may still accept this Offer.]

Googles willingness to enter into such a License Agreement is further expressly conditioned upon: (i) the permitted field of use for the patents licensed under the License Agreement beinglimited to, unless Google and the Company separately agree otherwise in writing, uses covered

by Googles and the Companys respective FRAND Commitments; and (ii) the right of theselected arbitrator(s) to require reasonable security, including an ongoing escrow of funds, fromeither party if the arbitrator determines such security to be necessary to ensure that such partywill fulfill the financial terms of the arbitrated License Agreement (such escrow to beimplemented in a manner consistent with the terms of the Order).

The Binding Arbitration would be conducted according to the process set forth in the Order, asmodified by subsequent agreement between Google and the Company.

[IF GOOGLE AND THE COMPANY ARE MEMBERS OF SSO WITH MANDATORYARBITRATION PROVISIONS, INCLUDE LANGUAGE REFERRING TO OPTION TO USETHOSE PROVISIONS HERE.]

To summarizebut without any intention to alter or supersede the terms of the Order, whichcontinue to governthe basic process would be:

1. Within sixty (60) days of accepting this Offer of Binding Arbitration, theCompany would select one of the Qualified Arbitration Organizations (QAOs) named in the Order to conduct the binding arbitration (unless Google and the Company haveearlier agreed to conduct the Binding Arbitration in a different arbitral forum) (theAdministrator). If the Company does not select a QAO by that deadline, Google will

be entitled to select one of the QAOs to serve as Administrator.

2. Within thirty (30) days of the selection of the QAO, Google and the Companywould mutually agree on the number and manner of selection of the arbitrators and thelanguage and location of the arbitration. If we cannot reach agreement on one or more of those items, they will be determined according to default rules set forth in the Order.

3. Within a reasonable time after an Administrator is selected, we will initiate anarbitration proceeding before the selected Administrator. At that time, we will also

provide the Company with a proposed License Agreement that will serve as the basis for the Arbitration.

4. The Company will have sixty (60) days from receipt of the proposed LicenseAgreement to (i) designate all terms of the proposed License Agreement that it contends


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are inconsistent with Googles FRAND Commitments, (ii) propose additional or alternative terms that the Company believes are necessary for the proposed LicenseAgreement to comply with Googles and the Companys respective FRANDCommitments, and (iii) agree to the inclusion of all other terms of the proposed Agreement in the License Agreement.

5. After receiving evidence and argument from Google and the Company inaccordance with the relevant rules and any relevant agreement between Google and theCompany, the arbitrators will determine whether the terms contested by the Company areconsistent with Googles FRAND Commitments and, if applicable, the CompanysFRAND Commitments, and revise any terms that they find to be inconsistent. This doesnot restrict either party from making arguments in Binding Arbitration regarding thevalidity, Essentiality, Infringement or value of the patents at issue in such proceeding, or the ability of the arbitrator to consider these arguments, or to follow existing legalstandards and burdens of proof.

6. The revised terms, together with those terms that the arbitrators found to beconsistent with the parties respective FRAND Commitments, those terms that theCompany did not challenge (and thereby agreed to), and any additional terms agreed to

by Google and the Company will become the Final License Agreement, which bothGoogle and the Company will execute within thirty (30) days of receipt from thearbitrators.

This Offer of Binding Arbitration will remain open until it is withdrawn by Google in writing bywritten notice to the Company.

[For pending cases: Pursuant to section IV.D.2 of the Order, Google will not withdraw or terminate this Offer until two months after the date of this Offer or until there is a Final Ruling

on any Request for a FRAND Determination brought by the Company that is pending as of thedate the FTC Order issues and that relates to the Covered Standards.]

[For future cases: Pursuant to the Order, Google will not withdraw or terminate this Offer sooner than thirty (30) days after Google seeks Covered Injunctive Relief against the Company

based on the alleged infringement of patents covered by the Offer, provided that Google maywithdraw this Offer upon the expiration or termination of the Order.]

If you wish to accept this Offer of Binding Arbitration, please execute the signature block belowand return it to:

Google Inc.1600 Amphitheatre ParkwayMountain View, CA 94043Attention: General Counsel

Acceptance of this Offer will establish a binding arbitration agreement between Google andthe Company, and a binding and irrevocable undertaking that Google and the Companywill (i) enter into a License Agreement on terms and conditions established by the


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Arbitrators as described herein; and (ii) pay to the other party all royalties establishedunder the License Agreement as if the License Agreement had been effective as of the dateGoogle files for arbitration. The agreement and the undertaking shall be enforceable byeither party to the greatest extent permitted by law.

Sincerely,

[SIGNATORY]

[TITLE]

on behalf of Google Inc. and Motorola MobilityLLC

On behalf of the Company named above (including its direct and indirect wholly-owned

subsidiaries and majority-owned and controlled subsidiaries and joint ventures), I herebyaccept Googles Offer of Binding Arbitration under the terms set forth above and in theFTC Order, receipt of a copy of which is hereby acknowledged.

Name: _____________________________

Title: _____________________________

Date: _____________________________

Documents

FTC Final Order: Google, Motorola Mobility